Legalese is not spoken here

Employee sues her boss for sexual harassment. Case settles for $127,500, and she has to agree to confidentiality and non-disparagement.

About nine years later, boss becomes an internet pariah for allegedly poaching a beautiful and beloved lion in Zimbabwe. Somebody in the media finds out about the sexual harassment settlement (how’d they do that, if it was confidential?). Media rep contacts ex-employee, who says that her lawyer has told her she can’t talk about the settlement, but . . .!

How time flies — you’re already 25 years old! I have seen many lovely tributes to you this week, and a couple of my favorites are here and here. I hope you don’t mind one more from me.

“Peek-a-boo! I’ll accommodate you!”

When President George H.W. Bush signed you into law in 1990, I had been practicing employment law for less than two years, so I feel like you and I grew up together.

I remember when those of us on the employers’ side were in a panic about whether you were going to ruin the workplace by requiring this thing called “reasonable accommodation.” Then, when the courts started taking a hard line on whether various medical conditions were “disabilities,” I thought you might be dead, or at least sick. But you came roaring back with that ADA Amendments Act in 2009!

I don’t always agree with Congress, but I want you to know that I think you’re a good law. Even “as amended,” and even though I still represent employers. Here are six things that I appreciate about you:

As I’ve reported before, the Equal Employment Opportunity Commission has sued a funeral home chain in the Detroit area for terminating Aimee Stephens, a transgendered woman, because she failed to conform to male sex stereotypes.

After the court ruled that the case would go forward, the defendants filed an answer, alleging (among other things) that it was lawful for them to have a sex-specific dress code. (It is, after all, a funeral home.)

The defendants then served discovery on the EEOC, asking things like whether Ms. Stephens had biological children, whether she had been married to women and how many times, whether she was born a biological male, whether she still had male sex organs (and helpfully providing a few examples of what they meant by that, if you catch my drift), whether she’d had any gender reassignment surgery or hormone treatments, and whether she’d presented as a female before August 2013.

These strike me as somewhat intrusive and potentially embarrassing but probably discoverable questions in a case where the plaintiff claims transgender discrimination.

But the EEOC didn’t think so. They filed a Motion for Protective Order, asking the judge to prohibit the defendants from asking about these things. According to the EEOC, the claim is for “stereotyping,” and so Ms. Stephens’s actual “gender” status is irrelevant.

As I told Suzanne, I really wasn’t sure, so on Monday morning, I sent an email to a few of the attorneys in my firm who had significant wage-hour expertise, and Jim immediately replied. It turns out that my assumption was wrong, so I tweeted Suzanne again:

Suzanne was not crazy about this answer (nor was anyone else):

That was the end of the discussion until yesterday afternoon, out of the blue, I received this tweet from Jon Hyman of the Ohio Employer’s Law Blog, who knows Jim Coleman:

It’s been 40 years since Jimmy Hoffa disappeared. Yesterday’s Detroit Free Press had a great article about the whole mysterious story, including the mobster suspects and all the leads that turned out to be dead ends. Hey, it’s labor-related!!

Here’s a lesson: Don’t call your employee an “old fart,” especially if you think you may need to fire him someday.

“Class, where did this employer (allegedly) go wrong?”

And don’t call his co-workers “old farts” right before you fire the co-workers.

And don’t give your “old fart,” who has only a first-level warning on his record, three or four “progressive” warnings on the day that you fire him.

And don’t try to invoke “employment at will!” to justify any of the above.

Every now and then a case comes along that illustrates so well all the things that employers should not do*. The case of Goudeau v. National Oilwell Varco is just such a case. So let’s do a “post-mortem” on the employer’s motion for summary judgment, which was originally granted but was reversed last week by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit**, meaning that the plaintiff’s age discrimination claims will go to a jury.

*According to the court’s decision, the employer vigorously disputes the plaintiff’s allegations. But at the summary judgment stage, the court had to assume that the plaintiff’s version of any disputed facts was the correct one.

Maurice Goudeau had worked for NOV’s predecessor since 1993, and was promoted at some point to maintenance supervisor. In 2008, NOV acquired his company, and he continued to do just fine. But in September 2010, when he was in his late 50s, he began reporting to a new supervisor.

Uh-oh. Lawyers who do document review may not be exempt from the overtime requirements of the Fair Labor Standards Act, according to a court decision issued yesterday.

Large law firms and legal services vendors often hire stables of contract lawyers to do document review in big cases. Sometimes, the lawyers who do the review are actually reading and analyzing the documents in light of the case and (1) determining whether they’re responsive to discovery requests or subject to objections, (2) using them to investigate the facts, or (3) using them to develop litigation strategy. Ideally, all three.

We aren’t talking about those lawyers.

According to David Lola, a temporary contract lawyer who worked on a 15-month document review project for Skadden Arps through a legal staffing agency, he was given a list of pre-determined search terms and went through each document looking for those terms. He also categorized the documents and did some redactions. He alleged that a machine (or, anyway, a reasonably intelligent non-lawyer) could have done what he did. He was paid $25 an hour, but no overtime even though he sometimes worked 55 hours a week.

“Three years of law school and $150,000 in student loans — for this?”

Mr. Lola brought a putative collective action against Skadden and the staffing agency (I’ll refer to both the defendants as “Skadden” from now on) for unpaid overtime under the FLSA, and Skadden moved to dismiss his lawsuit, contending that Mr. Lola was exempt from overtime because he was “the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and [was] actually engaged in the practice thereof.”* Last year, a federal court in New York agreed with Skadden, and dismissed his lawsuit.

*From 29 C.F.R. Section 541.304(a)(1).

Mr. Lola appealed, and yesterday a panel of the U.S. Court of Appeals for the Second Circuit, which hears appeals from Connecticut, New York, and Vermont, reversed, finding that his lawsuit stated a valid legal claim and could proceed.

Are you still using “independent contractors”? Get out of here – you know they’re really employees!

Donald Trump might be an independent contractor. Everybody else is an employee. DISCLAIMER: NOT A POLITICAL ENDORSEMENT.

On Wednesday, I did a very short “breaking news” post on the new Interpretation issued by Wage and Hour Administrator David Weil on when workers are “employees” versus “independent contractors” under the Fair Labor Standards Act.

[M]ost workers are employees under the FLSA . . . the scope of the employment relationship is very broad.” — WH Administrator’s Interpretation.

According to the DOL, the key question is whether “the worker is economically dependent on the employer” – in which case the worker is an employee – “or in business for him or herself” – in which case, the worker may be a true independent contractor.

Does the court system discriminate against women lawyers? Could be!!!!

Anyway, that’s what a couple of women litigators assume, based on their study showing that men were lead counsel in a sampling of federal cases in northern Illinois from 2013 more often than women were.

“She can argue a case in court! Isn’t that cute?”

According to the study, based on information gained through the PACER federal court electronic filing system, 68 percent of all lawyers appearing in the 2013 civil cases were men, and 32 percent were women. But 76 percent of lead counsel were men, while only 24 percent were women. Men were lead counsel in 78 percent of labor-related lawsuits, and women were leads in only 22 percent.

I get that, I believe that, and it doesn’t surprise me that fewer women than men are lead counsel.

About Us

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). Continue Reading

About our Firm

Since 1946, Constangy attorneys have counseled employers, from Fortune 500 corporations to smaller companies across the nation. We have more than 125 attorneys in more than 20 offices throughout the United States. Our attorneys understand what it’s like to walk in clients’ shoes—whether in the board room, the courtroom, or the factory. Just like in our blog, “legalese” is not spoken at our firm; we communicate with our clients in plain English. Clients view us as strategic partners, not just legal technicians.